Ch.1 What is Property?
1. Property definition: a person holds a property interest if he has any right which the law will protect against infringement by others.
a. Real Property: includes land and the structures built on it.
b. Personal Property: all other kinds of propertyàtangible (cars) & intangible (bank accounts)
2. basic problem of property lawà in general is nothing more or less than determining the relation of the individual to the community with regard to the use and exploitation of resources
3. Sources of Property Law:
i. principle source of property lawàlargely the product of decisions by the appellate courts of the individual states
ii. states are more or less free to develop their own property case law w/out interference by the U.S. Supreme Ct
b. State Statutes:
i. Statutory modification of common law principles
ii. Very few q’s that can be answered w/out reference to a statute
c. Restatement and model acts
i. 1st Restatement of Property
ii. 2nd Restatement of Property
iii. 3rd Restatement of Property
iv. Model statutes
4. Blackstone: legal theorist, professor, was from England, but an important authority in the U.S.
a. Blackstone’s commentaries became very important in the 19th century in the U.S. when the U.S. decided to adopt the English common law
b. Property rights have always overlapped social claims with individual ones, just as they have always mixed stability with changes over time.
c. People only need property bc there are other people who might contest their control of scarce resources
d. Property regimes quickly fall apart when people do not understand, respect, and tolerate the property claims of others
5. Theory of legislation; principles of the Civil Code
a. Property is nothing but a basis of expectation, the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it
b. Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.
6. Minnesota Constitution:
a. Requires compensation where private property is taken, destroyed, or damaged.
b. Not every economic, social, or other interest or advantage is a property right, the taking of which must be compensated, only those economic advantages which have the law back of them are property rights.
c. Property is more than the physical thing- it involves the group of righte inhering in a citizen’s relation to the physical thing.
7. Property is a bundle of rights: the right to:
i. As a gift
ii. To sell
8. Limitations on private property rights imposed by society:
a. Necessity: private & public
b. Limitations on the right to exclude:
i. Govt laws àmust allow fire and police officials on your property
ii. State v. Shack
1. Real property rights are not absolute; and, “necessity, private or public, may justify entry upon the lands of another.”
2. Property rights serve human valuesàthey are recognized to that end and are limited by it
3. can’t exclude private citizens who are trying to furnish medical or legal services to migrant workers living on a farm
4. “title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises”
5. since no possessory right is infringed upon the farmer cannot exclude the migrants visitors
6. The migrant workers freedom is enhanced at the cost of the freedom of the private property owner
7. evidence of how powerful the govt is of controlling property rights
b. Welfare economics
c. Pareto optimal & Hicks
d. Efficient allocation of scarce resources
e. Marginal utility
f. Transaction costs
g. Rational being
h. Tragedy of the commons
i. Commons is owned by everybodyà the marginal benefit of one more cattle to each herdsmen is positiveà each herdsmen is locked into a system that compels him to increase his herd without limit in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.
1. There is no incentive to preserve, there is an incentive to waste
2. Where do we have commons now? Ocean fishing,
3. Avoiding the commons:
a. Privatization: auction off the resources to the highest biddersàprivate owners will be less likely to overgraze bc they themselves bear the costs.
b. Auction of the right to useàthe number of rights sold or the amt of use authorized should not exceed the carrying capacity of the resourceàthe level of use allowed should be sustainable for the indefinite future.
i. Just compensation and fair market valueànotion in property that we can compute the value of property w/out a sale, this is a myth of the law, it doesn’t actually work, but it must be done
j. Scarce resources, are the only ones that are subject to property ownership, although sometimes sunlight (right of use) is a property right
k. Allocation of resources, is what property does
10. Posner: 3 notions:
a. Universalityà all resources should be owned or ownable by someone, except resources so plentiful that everybody can consume as much of them as he wants without reducing consumption by someone else
b. Exclusivityà the person who owns it, must have the exclusive right and the ability to exclude others
c. Transferability (alienability)à there must be the ability to transfer the property to someone else, if you are not able to then you are severely limited
Ch. 2: Attributes of Property
1. Seligman Principles of Economics: Seligman thinks that these theories are a progression, but Dolan thinks that they are ALL still present somewhat.
e tenant may NOT take it with him when he leaves, if it is NOT a fixture then the tenant may take it when they leave
a. Pt: in case one the court may rule that the improvement is a fixture and in case two the court may rule that the same improvement is NOT a fixture
iv. A purchaser is a person who takes by voluntary conveyance
b. Personal property:
i. Includes tangibles (cars) & intangibles (bank accounts)
ii. chattelsà movable, might wear out, be thrown away
iii. publicity, software, copyrights, intellectual property
iv. sometimes represented by records
v. the property interest is embodied in the ideas
c. Chose in action
i. Is a very valuable property or asset
ii. Contract right, property interest
iii. Accounts receivable
iv. They are transferable
i. A party might have interest in water and light
2. Surface rights
a. Surface interestàright to use, exclude, sell the surface
b. Sub-surface mineralsàmay be sold or used separate from the surface
c. Lateral support
d. Edwards v. Sims
i. Although the owner of real property also owns the space and resources above and beneath his land, a court of equity may require a cave owner to submit a survey for the purpose of ascertaining whether or not his cave extends beyond the boundaries of his property.
a. Streams: you have the right ot use the water
b. Irrigating crops: the person who uses it over a period of time develops a property interest and then has the right to use itàyou can’t build a dam that deprives someone downstream of their right to use the water
Ch. 4: Non-Traditional Objects and Classifications of Property
1. How the idea of what is money has changed:
a. Property used to be how people thought of money
b. Today: we think of property in terms of knowledge and informationàIP Lawàcopyrights, patents, trademarks, trade secrets, unfair competition
Who owns ideas? àwhile no one really owns an idea, the